King v. Jacksonville Coach Co., A-393

• Decision Date: 28 May 1959
• Docket Number: No. A-393,A-393
• Parties: Wilford Lee KING, Appellant, v. JACKSONVILLE COACH COMPANY, a corporation, Appellee.
• Court: Florida District Court of Appeals

Page 224

114 So.2d 224

Wilford Lee KING, Appellant, v. JACKSONVILLE COACH COMPANY, a corporation, Appellee.

No. A-393.

District Court of Appeal of Florida, First District.

May 28, 1959.

On Rehearing July 7, 1959.

Hall, Hartwell & Douglass, Tallahassee, Will O. Murrell, Jr., S. Perry Penland, and Arthur T. Boone, Jacksonville, for appellant.

Rogers, Towers, Bailey & Jones, J. Edwin Gay, G. Frank Godfrey, and C. D. Towers, Jr., Jacksonville, for appellee.

PER CURIAM.

In this automobile-bus collision case, after the jury brought in a verdict for the plaintiff, the defendant filed a motion for judgment in accordance with its motion for directed verdict or, in the alternative, a motion for a new trial. The circuit court entered an order, which is appealed from herein, granting the motion for judgment but not ruling on the alternative motion for new trial. We think the evidence at the trial was sufficient to make applicable the doctrine of last clear chance, and that there were questions of fact under that doctrine which were properly for the determination of the jury. A motion for directed verdict was not properly grantable and we, therefore, reverse the order appealed from, with directions to consider and determine the said alternative motion for a new trial.

WIGGINTON, Acting Chief Judge, CARROLL, DONALD K., J., and FUSSELL, CARROLL W., Associate Judge, concur.

On Petition for Rehearing.

PER CURIAM.

By petition for rehearing appellee for the first time questions this court's jurisdiction to hear and determine the subject appeal. Our attention is belatedly invited to the fact that this appeal is taken from an order granting appellee's motion for judgment in accordance with its motion for directed verdict made at the close of the evidence, and setting aside the verdict and judgment for appellant which was entered thereon. Why appellee failed to challenge the appealability of the questioned order either by motion, by its brief, or in the argument of its counsel before the court on its merits, is not explained.

An examination of the order from which appeal is taken clearly reveals that it is interlocutory in character and cannot be construed as a final judgment. Being unrelated to any question fo venue or jurisdiction, this court is without jurisdiction to hear and determine the propriety of the order except on appeal from such final judgment as may be ultimately entered by the trial court. ¹

For the foregoing reasons the court's opinion on the...